Articles Posted in Products Liability

I have written on many occasions about the scandal surrounding the millions of defective airbags manufactured by the Takata Corporation. These “have been linked to at least 13 deaths worldwide and more than 100 injuries,” according to The New York Times. The recall of some 60 million vehicles equipped with this faulty safety equipment is an ongoing scandal of truly global proportions.

An editorial published earlier this month in The Times, however, is a jarring reminder of what happens when the public’s attention wanders and pressure for change wanes. According to the newspaper “just 8.4 million affected cars had been repaired as of May 20… Last year, the secretary of transportation, Anthony Foxx, said an estimated 20 percent of recalled cars are never repaired, and perhaps more.”

That would be bad enough. But, shockingly: “even now, four automakers – Fiat Chrysler, Toyota, Volkswagen and Mitsubishi – are selling new cars that contain the faulty airbags, according to a new report by Democrats on the Senate Commerce Committee. And Fiat Chrysler and Toyota have refused to disclose which of their models contain the devices,” according to The Times. As an Oregon dangerous products attorney I find this stunning.

A story in The Oregonian this week is especially timely as the legislature considers changes to the ways in which legal recreational marijuana and its derivatives are treated in our state, and serious issues these, in turn, raise concerning injuries to children.

The newspaper recounts how an eight-year-old Klamath Falls boy became sick after eating a marijuana-infused cookie that he found on the ground. The boy’s mother told the paper that after returning from a family trip to a local quarry. “He pulled his chest and made motions that suggested he was choking. He had trouble keeping his eyes open,” the paper reports. It then quotes the mother saying “he said everything looked like a cartoon… He said he was vibrating all over.” A trip to the ER followed, along with five hours of treatment and observations. The boy is now fine.

The broader fallout from this incident may continue for some time, however, and is likely to resonate in the halls of the Oregon legislature in Salem. As The Oregonian notes, “the incident comes as Oregon public health officials and marijuana industry representatives debate the appropriate serving size for marijuana edibles.” Regulators have proposed serving size and concentration levels that are only half of what is allowed by Colorado and Washington “in part to protect novices and children who accidently eat the products.” This particular instance is a case in point: a single cookie contained two adult-size portions of marijuana’s active ingredient, a chemical compound known as THC. Many people unfamiliar with pot cookies or brownies may not be aware that unlike the ordinary versions of the same product one is not supposed to eat the entire thing.

The scandal surrounding defective auto airbags manufactured by the Japanese company Takata got worse this week. According to a story just published by the New York Times “Honda Motor Co. said Friday that it would recall 5.7 million cars worldwide in the latest round of recalls involving Takata Corp. air bag inflators that can explode and hurl shrapnel into the vehicle.”

The paper reports that about 2.2 million of those vehicles are here in the United States. That’s on top of the 24 million units from Honda and other companies that were already on the recall list in the United States alone – and tens of millions more worldwide. It is a scandal that has only grown over the last year. According to the Times 11 deaths and at least 139 injuries have been inked to the shrapnel-laden airbags..

The latest recall notices came just days after senators Edward Markey of Massachusetts and Richard Blumenthal of Connecticut “called on the Obama administration in a letter to force the recall of every Takata airbag that uses a propellant that contains a compound called ammonium nitrate, which can degrade over time and become unstable,” according to a separate Times article published earlier in the week.

US car makers may no longer dominate their industry they way they did a generation or two ago, but, as the New York Times recently detailed, their political clout in Washington remains formidable. As a result, the industry enjoys protections for unsafe and irresponsible behavior that other industries do not even when it results in auto accidents here in Oregon and elsewhere.

The newspaper reports that “legal loopholes that the auto industry helped create” are complicating efforts to hold both the auto makers and individuals working for them accountable for defective products they sold to millions of Americans over a period of years – products that led to many deaths and injuries.

“In one prominent example, lobbyists and trade groups blunted a law requiring car companies to notify regulators of certain safety defects within five working days, persuading Congress to water it down so that it carries only civil penalties, not criminal liability,” the paper notes. The article goes on to outline sensible proposals for accountability put forward over the last several decades by Republicans and Democrats alike, all of which have been eliminated or gutted in final legislation. It notes that “other industries, like pharmaceuticals and food” do not enjoy similar protections.

A party line vote in the Senate Commerce, Science & Transportation Committee this week marked a big win for industry lobbyists and loss for consumers. According to a report in the Washington Post the approved legislation, which now heads to the full Senate, “brims with industry-sought provisions that would block, delay or roll back safety rules.”

The newspaper’s account focuses in particular on auto and rail safety. According to the Post the bill “would block a new Department of Transportation rule requiring that trains hauling crude oil are equipped with electronically-controlled brakes that affect all cars at the same time.” It would also delay rules requiring both freight and passenger trains to have “positive train control” safety systems, despite the fact that most observers believe the recent fatal Amtrak crash near Philadelphia could have been avoided if a PTC system had been in place on the train in question.

On our roads, the bill would roll back measures intended to curb car accidents here in Oregon and around the nation by increasing the size of the fines the National Highway Traffic Safety Administration can assess against auto makers. Those fines are currently capped at $35 million – a relatively small sum for any big global carmaker – at a time of record-shattering auto recalls. The NHTSA had sought the authority to levy fines of up to $300 million, believing that the higher number would give car companies more incentive to put safety first. The committee reduced that to $70 million.

Last month I wrote about the spreading scandal relating to potentially lethal airbags installed in millions of vehicles from nearly a dozen carmakers over more than a decade. The airbags have a defect that can cause the steel cylinders used to inflate them to fragment, sending shrapnel into the bodies of the people the bags are meant to protect. Car accidents involving the defective airbags, manufactured by an auto parts supplier named Takata, are believed to have resulted in at least four deaths.

This week, however, the story became even more serious when the New York Times reported that as far back as 2004 “Takata secretly conducted tests on 50 airbags it retrieved from scrapyards, according to two former employees involved in the tests.” The paper goes on to report that when the tests confirmed the defect in the airbags “instead of alerting federal safety regulators to the possible danger, Takata executives discounted the results and ordered the lab technicians to delete the testing data from their computers and dispose of the airbag inflaters in the trash.”

“Today, 11 automakers have recalled more than 14 million vehicles worldwide because of the rupture risks,” the Times notes. In addition to the four fatalities linked to the defective products “complaints received by regulators about various automakers blame Takata airbags for at least 139 injuries, including 37 people who reported airbags that ruptured or spewed metal or chemicals.” The newspaper adds that Takata is the world’s largest airbag company “accounting for about one-fifth of the global market.”

For more than a week we have been learning details of what may be one of the biggest recalls in automotive history. The potential car accidents linked to it are especially scary because the recall is focused on one of the most basic safety features of modern automobiles: the airbags.

As the Associated Press reported earlier today, a recall of cars with airbags made by Takata, a Japan-based supplier of parts to numerous car companies, is now thought to effect “more than 12 million cars… (including) dozens of models made by BMW, Chrysler, Ford, General Motors, Mazda, Honda, Mitsubishi, Nissan, Subaru and Toyota dating to the 2001 model year.” As a result of the recall order AP reports that AutoNation, the nationwide chain that is the country’s largest car dealer, says it will stop selling the affected makes and models. The company’s CEO also went on record criticizing the car manufacturers “confusing and incoherent” handling of the situation.

As the news agency reports, the Takata-made airbags “can inflate with too much force, blowing apart metal canisters and sending shards flying at drivers and passengers. Safety advocates say that four people have died due to the problem.” The article goes on to note that “government investigators believe that prolonged exposure to moisture in the air makes the air bag inflator chemicals burn too fast, creating too much pressure.”

An article published in Friday’s New York Times brings the issue of General Motors and its massive recalls sharply back into focus. It tells the story of a 27-year-old Virginia woman who died in a car crash only days after receiving a recall notice on her 2006 Saturn. That notice concerned the ignition switch issue that has received so much media attention this year. It is also noteworthy that it was the third issue for which her car had been recalled. It is useful to be reminded that the GM recall story is far from over – but several details buried deep inside the article are points of special concern.

The victim in the crash highlighted by the article died earlier this year. That fact is significant, because even though the defects in GM cars stretch back many years the fatal crashes associated with them have been seen by most people as something that happened several years ago and is only now traceable to the company’s negligence. The article notes that as of this week the mediator administering a fund to compensate victims “had determined that 21 deaths were eligible, raising GM’s longstanding death tally of 13 by more than 50 percent.”

Equally disturbing (though, admittedly, not a new development for anyone who has followed this issue closely) is the paper’s reporting that “during months of outcry over GM’s handling of the (ignition) switch issue, as investigations and lawsuits mounted, the company has fought any effort to get the recalled cars off the road until they are repaired… To date, hundreds of thousands of cars remain on the road, and the automaker continues to maintain that they are safe.”

On Friday General Motors announced yet another expansion of the widening recall of its small cars. According to the New York Times, the company “is expanding its ignition-switch recall to include an additional 971,000 small cars worldwide, including 824,000 in the United States, that may have been previously repaired with defective switches.”

As I noted in a post earlier this month, well before today’s announcement GM had already recalled more than a million cars built since the 2003 model year because of a defect that may lead the ignition switch to cut off. That, in turn, could mean that air bags fail to deploy in the event of a crash. As the latest developments indicate it is now clear that many cars had the faulty switches added to them when they went in for repairs.

More disturbing, however, are the continuing revelations about the way in which GM has handled this scandal. In a move that may yet lead to wrongful death lawsuits, company documents have shown that GM misled grieving families for years, telling those who had lost loved-one in crashes linked to the flaw “that it did not have enough evidence of any defect in their cars, interviews letters and legal documents show.” This happened even as the company was internally debating the best way to fix the problem, the newspaper reports.

Yesterday’s announcement that Toyota has reached a settlement with the Justice Department was striking on several accounts. First there is the settlement’s sheer size. “Toyota will pay a $1.2 billion penalty to settle the criminal probe into its handling of unintended acceleration problems that led to recalls of 8.1 million vehicles beginning in 2009,” according to an account in USA Today.

The paper adds: “the federal criminal probe… was independent of federal safety regulator and congressional probes of the Toyota sudden-acceleration recalls. It looked at whether Toyota provided false or incomplete statements to the National Highway Transportation Safety Administration in the events leading to recalls for floor mats that could trap gas pedals and gas pedals that could stick… Toyota already paid two federal fines of $16.375 million in 2010 for delays in reporting the floor mat and pedal defects, and another $17.35 million in 2012 related to an additional mat recall.”

As the paper goes on to report, the problem first came to public attention in 2009 “with a rash of runaway car reports.” Five deaths have been directly linked to the problem, but the larger issue – and the one that Toyota must continue to deal with – is evidence that the company knew about these problems but covered them up.

50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
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